Massachusetts House Bill 1513

Summary

Massachusetts House Bill 1513 would make it a crime to disseminate or copy an image of another person nude or engaging in sexual conduct:

if one knows or should have known that the person in the image did not consent.

There is an exception for disclosure for “any bona fide and lawful public purpose.”

A violation is subject to imprisonment, a fine or both.

Status

The Massachusetts legislature adjourned its 2015 session. It carries over bills to the 2016 session, so the bill may be taken up again next year.

Analysis

» The bill is a content-based restriction, so it must satisfy the strict scrutiny test. It is likely that it fails that test.

Images disclosed without the consent of the person depicted do not fit any of the categorical exceptions to the First Amendment, so the legislation must satisfy strict constitutional scrutiny. It is unlikely that this bill meets the strict scrutiny test.

It is unlikely that there is a compelling state interest to satisfy the broad reach of this bill. Privacy is an important right, but the Supreme Court has held that by itself, it is not a sufficiently compelling interest for a content-based restriction to overcome the First Amendment. Offensiveness or embarrassment, whether to a group or an individual, is also not sufficient to overcome the First Amendment, even if the speech is a photograph. The Supreme Court has often held that the First Amendment protects speech even if it is intended to offend.

Even if the legislation is found to address a compelling state interest, it is not narrowly drawn to meet that interest. The bill is not limited to the malicious invasion of privacy, so it would apply to artistic, historical and newsworthy images, both in print and online.

» Exception for images in some instances compounds First Amendment deficiency.

The insertion of an exception for dissemination of images for a “bona fide and lawful public purpose” does not cure the legislation’s constitutional infirmities. This suggests that some speech is less valuable than others and thus gets less protection from the First Amendment, but the Supreme Court has held the opposite.